Senate Bill 3 Would Provide Water for Fish and Wildlife

AUSTIN, Texas – A law proposed in the current session of the Texas Legislature would mark a major change in state water policy that is significant for fish, wildlife and the environment.

As originally introduced, Senate Bill 3 would “provide for the freshwater inflows and instream flows necessary to maintain the viability of the state's streams, rivers, and bay and estuary systems.” It would direct the Texas Commission on Environmental Quality, which allocates water rights permits, to do this in two ways.

The bill states “in those basins in which water is available for appropriation, the commission should establish an environmental set-aside.” It goes on to say “in those basins in which the unappropriated water that will be set aside for instream flow and freshwater inflow protection is not sufficient to fully satisfy the environmental flow standards established by the commission, a variety of approaches, both public and private, for filling the gap must be explored and pursued.”

“Lt. Gov. Dewhurst and Chairman Armbrister are to be congratulated for their leadership and courage in putting this issue at the forefront of our water policy,” said Joseph Fitzsimons, Texas Parks and Wildlife Commission chairman, an attorney and rancher with a long interest in wildlife and the environment. He sat on the Study Commission on Water for Environmental Flows, a committee composed of key legislators, river authorities, environmental groups, leaders of the three state water agencies and others. That group reported recommendations to the legislature earlier this year, many of which are reflected in SB 3.

“This proactive approach to water for wildlife is a first in 150 years of Texas water law—we’ve really made a seismic shift,” Fitzsimons said.

In another landmark development, the bill would allow existing water rights to be amended to protect fish, wildlife, habitat and other environmental needs, although it would not allow new water rights for such purposes.

“This bill would allow voluntary transfers of existing permits to be dedicated to fish and wildlife. These kinds of voluntary transactions to benefit the environment will be necessary in over appropriated basins. This bill recognizes the need for market based solutions to the environmental challenge of providing water for fish and wildlife during a drought,” Fitzsimons said.*

Sen. Ken Armbrister of Victoria, chairman of the Senate Natural Resources committee, filed the bill, which must still be approved by the legislature and signed by the governor. The proposal is said to have broad support.

The bill contains qualifying language to make clear that water for wildlife and the environment should be set aside “to the extent practicable” and “while balancing all other public interests,” indicating the careful balance needed to satisfy the needs of cities, industry, agriculture and the environment in coming decades.

Experts say another breakthrough aspect of SB 3 is that it calls for an adaptive process to allocating water for environmental needs, a process that can evolve over time based on the latest science and stakeholder input. It would set up an Environmental Flows Commission composed of legislators and other appointees, including representatives of boards or commissions that govern the three state water agencies. This new commission would appoint river basin and bay stakeholder groups to recommend environmental set aside and flow standards. A science advisory committee would also advise the new commission.

All of these recommendations would be considered by the TCEQ when it makes final decisions on the bill’s provisions related to water allocation.

Anyone can see the text of SB 3 on the Texas Legislature Online Web site.